The Occupational Safety and Health Administration (OSHA), like many federal agencies, has finite resources for carrying out its essential functions. It simply isn’t feasible, nor efficient or effective, for OSHA regulators to visit every employer in the country. To address these limitations, OSHA introduced the Severe Violator Enforcement Program (SVEP) in 2010 to target its efforts and resources to employers deemed more likely to violate workplace health and safety regulations.
OSHA’s SVEP has received mixed feedback in the close to 15 years it has been in effect. Sometimes hailed by safety advocates for protecting workers against the worst of the worst, it’s also often denigrated by employers who feel the program’s focus on shame and severe penalties make it difficult to recover and remain in business.
What’s largely agreed upon, however, is that inclusion in the Severe Violator Enforcement Program is not where employers want to find themselves.
1. Why SVEP Was Created
OSHA’s Severe Violator Enforcement Program was launched in June 2010 to replace the Enhanced Enforcement Program (EEP), which was criticized heavily by government auditors. The program’s mission, as the name implies, focuses on employers that have committed repeated, willful, or failure-to-abate violations of the OSH Act.
Among the many changes from its predecessor, SVEP was intended to prevail where EEP failed. That meant the new program would:
- Enforce more stringent requirements
- Target significant hazards and violations (i.e. fall hazards)
- Facilitate follow-up inspections for “recalcitrant” employers
- Create a nationwide referral procedure
In 2022, OSHA announced changes to the SVEP to strengthen enforcement and improve compliance, including expanding the criteria for inclusion in the program to include all hazards and OSHA standards. Previously, the criterion for non-fatality inspections required exposure to specific hazards or to hazards related to the potential release of a highly hazardous chemical.
Other updates included eligibility requirements for removal from the SVEP and the addition of a minimum duration on the SVEP (see “Getting Out of the SVEP” below for details). OSHA also provided sample templates and guidance for complying with the program.
2. How an Employer Is Placed into SVEP
As implied in its title, the “Severe Violator” Enforcement Program targets employers that exhibit what OSHA calls “indifference to their OSH Act obligations.”
Per the SVEP directive, employers qualify for the program if they meet at least one of the following criteria:
- Fatality/catastrophe inspection where OSHA finds at least one willful or repeated violation or issues a failure-to-abate notice based on a serious violation directly related either to an employee death, or to an incident causing three or more employee hospitalizations.
- Non-fatality/catastrophe inspection where OSHA finds at least two willful or repeated violations or issues failure-to-abate notices (or any combination of these violations/notices), based on the presence of high-gravity, serious violations. “Gravity”, as defined by OSHA, is the severity of injury that could result from the alleged violation (high, medium, or low) combined with the probability (greater or lesser) that an injury will occur.
- Egregious criterion. All egregious (e.g., per-instance citations) enforcement actions shall be considered SVEP cases.
Note: Under OSHA’s multi-employer citation policy, a general contractor may be cited for the same violations as other contractors qualifying for SVEP, and therefore, may also qualify for the program. An employer can qualify for SVEP even if none of its own employees were exposed to hazards.
3. How SVEP Uses Public Shaming
One of SVEP’s most notable aspects is its SVEP case log, which is available online. The regularly published case log details the names, locations, citations, and penalty amounts of employers in the program.
There are more than 900 employers – the majority from the construction industry – listed on SVEP’s list of bad actors (as of September 1, 2024). For many small- to midsize businesses, many with under a dozen workers, this public record can be a fatal blow, impacting reputation, referrals, and even lines of credit.
Additionally, the Department of Labor routinely publishes news releases publicizing violations by employers in the SVEP, including this 2022 incident that resulted in the preventable amputation of three fingers from one worker’s hand.
Another employer was highlighted in this November 2023 news release when a fall hazard resulted in a fatality. The incident landed the employer, Eastern Constructors Inc., in the Severe Violator Enforcement Program. OSHA stated publicly that “Eastern Constructors’ failure to protect its employees from the leading cause of death in the construction industry is inexcusable and resulted in tragic consequences.”
4. Consequences of SVEP Status
Because the program places employers into SVEP at the time of the citation and prior to any employer response, employers are immediately subject to consequences.
Penalties and indirect consequences of being placed in the Severe Violator Enforcement Program include:
- Mandatory follow-up inspections, at the cited facility and other worksites
- Expensive settlements, including mandatory hiring of personnel and company-wide terms
- Reputational harm, lost clientele, or contracts
- Loss of personnel and deterrence to prospective employees
- Difficulties with business loans and lines of credit
5. Getting Out of the SVEP
Once in, it’s tough to get out. Employers must remain on the Severe Violator Enforcement Program log for a minimum of two years.
OSHA will remove an employer from the program after three years of receiving acceptable abatement verification. To be eligible, the employer must have:
- Abated all SVEP-related hazards;
- Paid all final penalties;
- Where applicable, followed and completed all applicable settlement provisions;
- Received no additional serious citations related to SVEP hazards; and
- Have received at least one follow-up inspection.
OSHA will reduce time spent in the program to two years if the employer consents to an enhanced settlement agreement that includes developing and implementing a safety and health management system within the two years. The system should include the seven basic elements outlined in OSHA's Recommended Practices for Safety and Health Programs. Additionally, implementation of the safety and health management system must be verified by an independent third-party, such as a certified safety professional or certified industrial hygienist.
Can You Contest An SVEP Citation?
Yes, you can contest the violation that placed you in the SVEP within 15 working days of the citation. If OSHA agrees to delete or reclassify the citation, or an Administrative Law Judge vacates the citation, you will be “lined out” of the SVEP log.
Going Out of Business Won’t Necessarily Protect You From the SVEP
OSHA maintains searchable records of the legal entity name, any associated “doing business as” names, and ownership of businesses included on the SVEP. In cases where OSHA encounters the employer or its owners at any time in the future, OSHA will reactivate the entire timeline, process, and abatement verification procedure.
Hendershot Cowart P.C.: OSHA Lawyers Protecting Your Business
Of course, the best way to get off the Severe Violator Enforcement Program list is to never get there in the first place. Prevention is a step in that direction, as is working with experienced lawyers to ensure compliance proactively.
In the event an employer does experience an incident that could lead to SVEP status – such as experiencing a fatality or catastrophe on a worksite, being notified of a pending inspection, or being cited for a criteria violation – act fast to prepare, respond, and contest citations accordingly.
The OSHA defense attorneys at Hendershot Cowart P.C. help employers throughout Texas and beyond protect their workers from preventable harm, and their businesses from potentially disastrous repercussions. We do this by providing both proactive, preventive counsel, as well as responsive defense.
Call (713) 909-7323 or contact us online to speak with an OSHA defense attorney.
